Johnston v. State

• Decision Date: 04 March 1971
• Docket Number: No. 26330,26330
• Citation: 227 Ga. 387,181 S.E.2d 42
• Parties: John William JOHNSTON, Jr., et al. v. The STATE.
• Court: Georgia Supreme Court

Page 42

181 S.E.2d 42

227 Ga. 387

John William JOHNSTON, Jr., et al. v. The STATE.

No. 26330.

Supreme Court of Georgia.

March 4, 1971.

Rehearing Denied March 18, 1971.

Syllabus by the Court

1. (a) The facts as stated in the affidavits to the search warrants, taken as true, constitute a sufficient showing of probable cause.

(b) The sworn evidence before the judicial officer justified the issuance of the search warrants.

2. Code Ann. § 79A-903(b, 3) is not subject to the constitutional attack made theron on the ground that it is an unlawful delegation of legislative power.

3. The enumerated error of the overruling of the motion for a new trial is not argued, hence is deemed abandoned.

4. The court did not err in its judgment for any reason urged.

The defendants were arrested on August 26, 1969, in a motel room in Bibb County, rented by one of them. The arrest resulted from a search of the premises executed under a search warrant of the same date. The search revealed quantities of LSD and 'marijuana' (as spelled in Code Ann. § 79A-903(b, 5), Ga.L.1967, pp. 296, 344, as amended, Ga.L.1970, pp. 470, 471; or 'marihuana,' as spelled in Code Ann. § 79A-802(13), Ga.L.1967, pp. 296, 325, as amended, Ga.L.1970, p. 470) and the defendants were charged with possession of narcotics drugs and possession of depressant or stimulant drugs.

The defendants filed demurrers to the indictments and moved to suppress evidence obtained as a result of the search on the grounds that the warrants were invalid due to their insufficiency to establish probable cause and that the search exceeded the scope authorized by the warrants.

After hearing on the issues presented, the trial judge overruled the demurrers to the indictments and the motions to suppress. The joint nonjury trial of both defendants resulted in their convictions on two counts, hereinabove stated, from which judgment they appeal. Enumerated as error are the overruling of the defendants' motion for a new trial, their second and third demurrers to Count 2 of their indictments and their motion to suppress evidence.

Adams, O'Neal & Hemingway, Manley F. Brown, Macon, for appellants.

Jack J. Gautier, Dist. Atty., Whitney T. Evans, Jr., Macon, for appellee.

FELTON, Justice.

1. The affidavit submitted to the judicial officer as the basis for issuing the search warrant in the case of defendant Johnston reads as follows: 'On August 26, 1969, an informer told officers that subject had in his room and automobile above described a large quantity of narcotic and dangerous drugs not obtained on prescription. Upon checking, officers determined that this informer was in a position to have seen these narcotic drugs as described by him. Officers also determined that this subject was in the office of Dr. Reese Eberhardt on Houston Avenue on August 25, 1969, and requested narcotic drugs of Dr. Eberhardt, but was refused. Officers also checked and determined that this subject does have a lodging at Room No. 219 at said Howard Johnson's Motor Lodge.

'Officers learned that Johnston was accompanied to Dr. Eberhardt's office by Mike Russell who was staying in Room 217 of the Howard Johnson's Motor Lodge, and that Mike Russell used the same name, age and address as that of subject.

'It was from the informer that offcers learned of the visit to Dr. Eberhardt's office.'

The affidavit in defendant Russell's case is identical, with the exceptions that his room number is specified as No. 217 and the penultimate paragraph reads as follows: 'Officers also learned that while suject was in Dr. Eberhardt's office he used the name of John Johnston and the same age and address as John Johnston who was at the time staying in Room 219 of the said Howard Johnson's Motor Lodge and who accompanied him to Dr. Eberhardt's office.'

( a) Appellants object that the above affidavits contain no data as to informer reliability. '* * * (W)here the officer relies upon an informant he must give sufficient information of the underlying circumstances from which he concluded that the informant was reliable. (Cits.) In his affidavit should appear a recital of what the informant actually said, and why the officer thought that the information was credible, Peters v. State, 114 Ga.App. 595, 152 S.E.2d 647, especially when the name of the informant is not stated.' Burns v. State, 119 Ga.App. 678, 683, 168 S.E.2d 786, 789, and cit. We do not construe the holdings, requiring a recital of what the informant actually said, as to require that the informant's exact words be quoted. The case of Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 13 L.Ed.2d 142, cited and quoted from in Peters v. State, supra, 114 Ga.App. p. 597, 152 S.E.2d p. 648, held merely that 'when the constitutional validity of that arrest was challenged, it was incumbent upon the prosecution to show with considerably more specificity than was shown in this case what the informer actually said.' (Emphasis supplied.) As long as the substance of his statement is fairly stated there is compliance with this requirement. The statement, that the informant told officers 'that subject had in his room an automobile above described a large quantity of narcotic and dangerous drugs not obtained on prescription,' was sufficient for this purpose. As far as the informants's reliability, this was shown by the alleged 'underlying circumstances' of the officers' verfication of the informant's information as to the defendants' places of lodging, vehicles description and activities, as well as their determination that the informant had been 'in a position to have seen these narcotic drugs as described by him.' '(I) nsufficiency of the affidavit does not appear from the fact alone that some or all of the facts recited come from information furnished by others. Strauss v. Stynchcombe, 224 Ga. 859(2), 165 S.E.2d 302, if there is substantial basis for crediting the hearsay. (Cits.)' Burns v. State, supra, 119 Ga.App. p. 683, 168 S.E.2d p. 789.

As to the contention that the affidavits contain no underlying facts as to how the informant obtained his information, the only reasonable inference from the statements, that the informant had stated that the defendants had the illicit drugs and that it had been determined that he had been in a position to have seen them, is that he had personally observed the things about which he told the police oficers. Such an inference as to informant reliability can be made when the magistrate is confronted with such detail, Spinelli v. United States, 393 U.S. 410, 417, 89 S.Ct. 584, 21 L.Ed.2d 637, and is not inconsistent with the fact that the State has the burden of proving that the search and seizure were lawful. Code Ann. § 27-313(b) (Ga.L.1966, pp. 567, 571).

It is also contended that the affidavits lack data as to the time when the informant obtained his information. 'A 'prime element in the concept of probable cause is the time of the occurrence of the facts relied upon.' Fowler v. State, 121 Ga.App. 22, 23, 172 S.E.2d 447, 448.' Windsor v. State, 122 Ga.App. 767, 178 S.E.2d 751. The Court of Appeals in the Fowler case stated further 121 Ga.App. on p. 23, 172 S.E.2d on p. 448, however, that 'it was not necessary that the precise date of the occurrence be given but it should appear from the facts that the occurrence should be so near in point of time to the making of the affidavit and the execution of the search warrant as to create a reasonable belief that the same conditions described in the affidavit still prevailed at the time of the issuance of the warrant.' In determining the probability that the defendants still possessed the illicit drugs when the warrant was issued, the judicial officer could consider the facts, which appear from the affiant's sworn statements and affidavits, that the defendants were out-of-state transients, temporarily staying in a motel, and that on the day before they had unsucessfully attempted to obtain a narcotic drug from a local physician by fraud, deceit, misrepresentation, subterfuge, forgery, alteration, concealment of a material fact, use of a false name, or the giving of a false address, or a combination of the above, in violation of Code Ann. § 79A-819 (Ga.L.1967, pp. 296, 342), which is a misdemeanor. Code Ann. § 79A-9910 (Ga.L.1967, pp. 296, 374; Ga.L.1970, p. 461). While the Spinelli case, supra, 393 U.S. p. 415, 89 S.Ct. p. 588, 21 L.Ed.2d 637 rejected the 'totality of circumstances' approach in cases where the informant's tip is a necessary element in the finding of probable cause, the court reaffirmed its previous holding, 'that the magistrate is obligated...